Wednesday, 14 March 2012

Copyright extradition FAQ

In 10 days’ time I’ll be speaking at OrgCon on “Have warrant, will extradite – copyright cops go international”. In the meantime, here is a FAQ to whet your appetite.

Q. Surely copyright is a civil matter? How can someone be extradited for that?

UK copyright is both civil and criminal, and has been for many years. An infringer can be sued for infringement in the civil courts, or prosecuted in the criminal courts for a more limited range of criminal copyright offences – or both.

Most criminal copyright offences require a commercial ingredient. All of them require the defendant to have knowledge, or reason to believe, that (put roughly) what was done infringed copyright.

Q. If copyright is about copying, can linking infringe?

If a site links to infringing items elsewhere, it is true that the site will not store any copies of infringing copyright works. But that’s not the end of the story. Copyright legislation sets out a series of ‘restricted acts’, not all of which depend on copying. In particular, it is an infringement to make a work available to the public without the consent of the copyright owner.

In Newzbin, a civil case, the site operator was found to infringe by making movies available to the public, even though it did not store any copies of the infringing films on its own site. The NZB linking files in that case were not simple links, but made downloading practicable by aggregating hundreds or thousands of fragments into one user download. The judge, applying the European Court of Justice decision in Rafael Hoteles, said:
“This service is not remotely passive. Nor does it simply provide a link to a film of interest which is made available by a third party. To the contrary, the defendant has intervened in a highly material way to make the claimants' films available to a new audience, that is to say its premium members. Furthermore it has done so by providing a sophisticated technical and editorial system which allows its premium members to download all the component messages of the film of their choice upon pressing a button, and so avoid days of (potentially futile) effort in seeking to gather those messages together for themselves.”
The judge also found the defendant liable on the separate grounds that its particular behaviour amounted to authorising and inducing copyright infringement by the site’s users.

Newzbin suggests that simple linking does not of itself infringe the making available right. However there may be room for debate about where the line between simple linking and the Newzbin scenario is drawn.

Q. Didn’t the TV-Links case say that linking wasn’t a copyright offence?

TV-Links was a criminal prosecution. The site consisted of user submitted links. The judge said:

“The site operators would not know when a link was placed on its site by members of the public. When it learned, if it did, of a link that had been placed on its site, the defendants would not know what that link was, unless those who had placed the link onto TV-Links’ site also provided an accurate description of what the link was. The operation of the site was entirely in the hands of the public in the sense that they placed the links on the site that pointed the way to sites from which material could be accessed. … It was not disputed that when the attention of TV-Links was drawn to material on a site to which it had a hyperlink (and where such material was said to be in breach of copyright) the defendants took immediate steps to block access to such a site.”
On the question of making available, the judge found that it was the linked-to sites, not the linking site, that made works available to the public.

In the O’Dwyer case the prosecution sought to distinguish TV-Links on the basis of three aspects of the alleged conduct, recited by the district judge in the magistrates court as follows:

1. “Both TVShack websites were entirely in the hands of Richard O’Dwyer and his co conspirators requiring third parties to sign up to TVShack and be vetted before going further.”

2. “There was no attempt to protect copyright.”

3. “O’Dwyer knew materials were subject to copyright and actively taunted already cited efforts in June 2010 to seize TVShack.net.”

The prosecution also argued that O’Dwyer was “intimately involved in deciding who was allowed to post links on the TVShack website, which links would be posted…”.

O'Dwyer said that he was not guilty of the charges against him.  He stated that his site "worked exactly like the Google search engine ... (it) directed users through the use of searches to websites ... at no point was there any infringing material, such as movies or programmes on my server.  It just directed users to other websites by providing the link."

The judge concluded:
“there is much in the distinction factually, remembering that these matters are allegations of conduct which a trial court alone can resolve – that [the prosecution] contends between the instant matter and [TVLinks].”
He decided that the conduct alleged by the prosecution in the extradition request would be an offence in the UK. That conclusion is at the heart of the public controversy over dual criminality in the O’Dwyer case.

Q. How are the facts established in an extradition case?

Extradition cases are decided on the basis of the conduct alleged against the defendant. Reasonable grounds for suspicion have to be established. The court deciding on extradition is not supposed to conduct a mini-trial to decide whether the allegations are justified. That is the province of the trial court in the requesting country. For many requesting countries there is no requirement to produce evidence in the UK court to support the allegations.

Q. How can a country extradite someone who has never set foot there?

In the most typical extradition situation some at least of the defendant’s conduct has to have occurred in the requesting territory. However, the courts have recognised that crimes can be committed remotely. So someone who sends a letter bomb from one country to another commits an act in the territory to which the letter was sent. If the defendant intended the effects of his actions to be felt in another country, his conduct will be treated as having occurred there.

Q. Where does conduct occur on the internet?

For extradition purposes the existing “intended effects” principle may apply, or it may be argued that technical aspects of conduct in fact took place in the requesting territory. But either gives rise to a problem that is increasingly familiar in cross-border internet cases, whether civil or criminal.

By default a website is visible cross-border. Does that mean that the site owner is exposed to the law and jurisdiction of every country from which it can be accessed? In the language of extradition, is the website operator automatically taken to intend the effects of his actions to be felt in every country from which users can access the site? Or does there have to be more than that, and if so what?

There are almost as many different answers to these questions as there are different types of liability and countries. Answers that veer towards the ‘mere accessibility’ end of the spectrum are tempting as a means of asserting local law, but have severe extra-territorial consequences. Maximising cross-border exposure to multiple jurisdictions carries a high risk of chilling the free flow of legitimate information across borders.

Q. Does the alleged conduct have to be a criminal offence in the UK as well?

In many extradition cases, including to the USA, yes - dual criminality has to be shown. This can be a highly technical exercise. The result may depend critically on how the court constructs the hypothetical scenario in which the alleged conduct is geographically transposed, so as to determine whether it would be an offence here.  It is particularly important to get that right in a copyright case, since copyright is itself a territorially limited right.

Q. What if the UK can also prosecute?

Historically the paradigm extradition case was someone who committed a crime in one country, then fled to another. Only the requesting country would have jurisdiction to prosecute. As communications improved, so it became possible for a crime in one country to be plotted, and possibly committed, remotely from another. Criminal jurisdiction rules and extradition place of conduct rules became less strict in response, enabling a person to be extradited from the country in which he carried out most or all of the physical acts.  In that situation the authorities in both countries may have the ability to prosecute.

Many argue that where significant conduct takes place in the UK, then the UK court should be able to consider refusing extradition if the requesting territory is an inappropriate forum for trial.

At present, if the connection with the requesting country is sufficiently tenuous that it amounts to exorbitant jurisdiction, then the UK court can refuse extradition on human rights grounds. Otherwise it cannot consider forum.

The internet takes forum concerns to a new level. Far from the paradigm of one obvious victim country, a website is by default available worldwide. If any extradition partner can seek extradition from the website operator’s home country simply because users have accessed the site from the requesting country, then the site operator faces extradition exposure to any one of a series of countries, none of which has as close a connection with the alleged offence as the home country. Any protection then offered by dual criminality is scant comfort. It is unlikely to be at all obvious that any requesting country has the main interest in prosecuting and is best placed to do so.

The Extradition Act 2003 in fact contains provisions, not brought into force, that if a significant part of the conduct alleged to constitute the extradition offence is conduct in the UK, then extradition should be barred if in view of that and all the other circumstances it would not be in the interests of justice for the person to be tried in the requesting territory.

The Scott Baker Extradition Review currently being considered by the Home Secretary recommended against bringing these provisions into force. The word ‘internet’ appeared not once in the report’s entire 486 pages.

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